Editors --- "Disability support pension: qualification; whether there is a compelling reason for a person not to undertake treatment; test for whether there is a compelling reason" [2008] SocSecRpr 32; (2008) 10(2) Social Security Reporter, Article 14

• SECRETARY TO THE DFHCSIA v JANSEN
• Background
• The issues
• Discussion
• Formal decision

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Disability support pension: qualification; whether there is a compelling reason for a person not to undertake treatment; test for whether there is a compelling reason

SECRETARY TO THE DFHCSIA v JANSEN

Federal Court of Australia

Decided: 4th April 2008 by Gyles, Stone & Buchanan JJ

Background

Jansen applied for disability support pension (DSP) on 11April 2005 for conditions described as anxiety, depression, panic attacks and stomach problems. The medical evidence before the AAT was that the presentation and severity of Jansen’s conditions were complicated by alcohol abuse. Further, the medical evidence was that Jansen had had little in the way of formal treatment and medication for his conditions. The doctor was optimistic about Jansen’s prospects of recovery if he received appropriate treatment for his conditions. The doctor considered that alcohol detoxification was the first step in a treatment regime for Jansen, however it was noted that Jansen was not prepared to cease drinking. Jansen was also recorded as being unwilling to consider counseling, other than church based counselling, or mediation.

The AAT found that Jansen had not demonstrated a genuine reason for refusing other treatment options and therefore his conditions were not fully investigated, treated and stabilised.

Jansen appealed the AAT’s decision to the Federal Court.

The primary judge held that the AAT had misunderstood the correct test to be applied in determining whether person had a compelling reason to refuse treatment. The primary judge concluded that the AAT had erred in applying an objective test and held that (relying on Dragojlovic v Director-General of Social Security[1984] FCA 6; (1984) 1 FCR 301 and Koutsakis v Director-General of Social Security (1985) 10 FCR 42) the emphasis in the Act is on subjective good faith or lack thereof for refusing treatment.

The Secretary appealed the Court’s decision to the Full Federal Court.

The issues

The issue for determination by the Court was the correct test for determining whether a person had a compelling reason to refuse treatment.

Discussion

The Full Court reviewed the history of the amendments to the Act and concluded that that history left no room for an assumption that there has been a continuing social policy since Dragojlovic to the present that a person’s genuine fears or beliefs, even if unfounded, would provide sufficient basis for a person to qualify for a pension in circumstances where they have refused medical treatment for their condition.

The Full Court said that neither the question of whether there might be further improvement with medical treatment, nor the question of whether there was a reason to refuse treatment, could be determined from the state of mind, views or beliefs of the applicant for a disability pension. The Full Court held that both of these circumstances require an opinion formed on medical grounds.

The Full Court concluded that whether a person’s reason for refusing treatment is compelling is to be determined by a relevant medical officer. The Full Court held that it is the medical officer who must assign an impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.

The Full Court stated that the appropriate question for the decision maker to ask is, ‘Am I satisfied that there is a reason that compels the claimant not to undertake treatment?’. The Full Court observed that put this way, the question is not a choice between mutually exclusive objective and subjective tests, but is a simple formulation which involves some elements of each.

The Full Court concluded that the primary judge erred in focusing on the purely subjective aspects of the test in clause 6 of the Introduction.

Formal decision

The Full Court allowed the appeal and ordered that the orders of the primary judge be set aside.

[S.O.]

Court:

Federal Court of Australia